Surviving with the ADA: hiring staff.

As the new Americans with Disabilities Act (ADA) takes hold, nursing facilities are discovering that they can only benefit from it in finding and keeping loyal and competent employees who happen to be disabled. Further, many of the issues of accommodation that have plagued other businesses are proving to be relatively minimal, since most nursing homes already have facility accessibility for the disabled. Still, close understanding and application of the ADA could very well further upgrade your existing staff.

The definition of "disabled" is quite broad under the act, and includes individuals who have a physical or mental handicap or impairment which limits one or more of the following activities: hearing, seeing, speaking, walking, learning, care for oneself, breathing, and working. Disabilities such as cancer, mental illness, AIDS or even disfigurement are also under the ADA, which (if you have a staff of over 25) took effect on July 26.

Title I of the ADA prohibits discrimination against qualified disabled individuals, and affects application procedures, the hiring, advancement or discharge of employees, job training, employee compensation and benefits. The burden of proof is on the employer that everything that is reasonably possible has been done to hire a qualified disabled individual. Although the ADA identifies specific practices that are prohibited, determination of discrimination will be made on a case-by-case basis. In all cases, documentation is extremely important.

Specifically, the employer must, first of all, reasonably accommodate the disabilities of qualified applicants or employees unless there are undue hardships; that is:

The employer must make the existing positions accessible and may use: a) job restructuring, b)job reassignment, c) parttime or modified schedules, d) unpaid leave, e) modification of equipment, f) qualified readers or interpreter, g) reassignment of qualified persons to another job if they become disabled and, finally, h) appropriate modification of hiring procedures.

The employer is not required to lower standards for hiring or required to provide personal items such as eyeglasses or hearing aids.

"Undue hardship" is determined by the size and type of the employer's resources, the nature and cost of the accommodation, and the nature of the employer's overall operations.

The key element here is to understand the individual's disabilities and enable the person to accomplish the job they were hired to do the best way possible without burdening the operation.

Second, the employer may reject applicants who pose a direct threat to the safety or health of others; that is:

It is legal to require that an employee not pose a direct threat to others in the workplace. The determination of a direct threat must be based on objective factual evidence regarding the individual's ability to perform essential job tasks and whether the risk can be eliminated or reduced to an acceptable level through accommodation.

Third, the employer cannot discriminate against qualified applicants or employees because of known disabilities; that is:

The ADA makes it imperative that facilities specify the qualifications needed to fill a position. The most feasible approach is to perform a job analysis on each position, write a detailed job description that is not biased against the disabled, develop a method to assess individuals in the essential skills and develop a system to assess the individuals on the job.

Who are "qualified individuals?" The definition of qualified is, "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position." The individual must meet the educational, experience and skill requirements of the job. A written job description should specify those essential or basic job duties that must be performed.

When reviewing job positions and descriptions, consideration should be given to the reason the position exists, the number of employees available to perform the function or how the performance of the function can be distributed, and the degree of expertise required to perform the function.

Often the job description that exists is a list of simple requirements for a job. Well-written functional job descriptions must be prepared before advertising or interviewing for a job. Identify and document work related work experience, time spent performing each function, and the consequences of not performing each function. Job descriptions should be based on a job analysis and include the following: essential job tasks, marginal job activities, and analysis of the essential work broken into sequential steps, physical capabilities required, use of specific tools, equipment and materials, frequency of each activity, the degree of skill required, psychological, physiological, environmental and cognitive considerations, and recommendations regarding modifications and/or accommodations for the job.

Example: An individual was disqualified because she could not lift a 50-pound box of paper, a requirement according to the job description. However, the real purpose of the job was not simply picking up the box, but moving it to another location. This could be done by use of a trolley or by having the individual carry several reams of paper rather than the entire box.

ADA prohibits the use of qualification standards to reject individuals with disabilities. Thus, your evaluation process and reemployment inquiries must ensure that there is no discrimination. Testing is acceptable as long as all qualified applicants go through the same evaluation process. Moreover, providing the disabled with additional time to complete the evaluation process or administering a written test verbally is acceptable.

Employment medical exams may be given only after a conditional offer of employment is made. It is highly recommended that physicians have a copy of the job description and access to some previous experience or knowledge of that job function (eg, videotape the job activities or have a physician walk through the facility). By the way, reemployment drug screening is not subject to any of the ADA restrictions.

During the interview phase, the interviewer can ask the applicant whether he/she can perform the specific duties but not ask about the cause, type or extent of the disability or workers' compensation history. However, given a clearly observable disability, one may ask the individual how he/she would perform specific essential tasks.

As a fourth consideration in complying with ADA, the employer is required to defend against complaints filed with Equal Employment Opportunities Commission (EEOC), whose remedies may include awarding of back pay or seeking court orders to stop discrimination. Document all your efforts to select and hire qualified applicants and accommodate staff, within the limits of economic feasibility.

Here is a practical checklist to evaluate if your facility is meeting the ADA guidelines and is making the most of ADA to build a more effective and better-performing staff:

* Identify essential job functions and

physical/mental requirements. * Review job descriptions and redraft 

where necessary. * Ensure that the evaluation is related

to those essential job responsibilities. * Identify the best and most effective

means to evaluate applicants on those

essential tasks. * Ensure that individuals with disabilities

are not penalized when evaluated. * Ensure that the evaluation process

does not include a medical examination

or inquire about mental or physical

disabilities. * Develop practices which ensure you

are accommodating all individuals

during the selection (testing and interviewing),

training, and job performance

stages. * Review job application and other

personnel forms for bias language. * Include job descriptions with medical

exam papers. * Budget appropriate funds for job accommodations * Review your collective bargaining 

agreement. * Ensure that hiring standards for all

applicants are exactly the same. * Develop a systematic procedure to

determine whether accommodating

an individual is an undue hardship. * Train staff to be sensitive to the disabled.

As with other regulations that may appear initially burdensome, careful observation of ADA may yield benefits in the long run.

Uri Heller, PhD, is founder of interaction Dynamics, a Chicago-based employment consultation and evaluation firm. For further information on the ADA, call Robert Heller, PhD, at (312) 245- 9452 or the Equal Employment Opportunity Commission at [phone].